Position One Court of Appeals
"A Question of Good Government"
Endorsement David Hunnicutt

Editorial

In
June of this year Oregonians will celebrate the 100th anniversary of our
beloved and often-used initiative and referendum system. Oregonians claimed
their right to decide issues for themselves back in 1902.

In that
100 years we allocated funds to build roads and universities, irrigation
districts and armories. We’ve granted women the right to vote, and
we’ve instituted a statewide income tax. We’ve abolished the
death penalty and reinstated it. We’ve approved prohibition; we’ve
repealed prohibition. We’ve gone back and forth and back again on
our gambling and liquor laws.

Okay, sometimes
we’re a bit indecisive, but all in all, we’ve done a darn
good job. As “Stuart Smiley”says, we’re good enough,
we’re smart enough, and doggone it—the initiative system is
working. And in the face of gridlocked, indecisive legislatures, voters
have often had little choice but to resort to the initiative process.
One longtime backer of petition projects used to say, “The initiative
system is our modern day replacement for muskets and swords.” It
may not be perfect, but it’s better than violent confrontation.
It’s been a way for voters to express their frustrations over issues
such as taxes, free speech, crime, the environment, and most recently,
private property rights.

Private
property rights were the focus of Ballot Measure Seven, which voters approved
in the 2000 election. Enter David Schuman, who as a deputy attorney general
was asked to handle a challenge to the constitutionality of Ballot Measure
Seven after it passed.

Now you
might think that the job of the Attorney General’s office would
be to defend the laws that you and I and all Oregonians have put in place.
But in this case, there were questions—questions covered only by
Willamette Week and BrainstormNW in our June and October 2001 issues.

Gov. Kitzhaber
was a vocal and public opponent of Measure Seven. And as a law professor
Schuman had published in writing his dislike and disdain for the entire
initiative process, making him an odd choice to defend this controversial
measure. Meeting notes obtained by BrainstormNW raised serious questions
about how aggressively Schuman pursued the interests of the people of
Oregon as he defended their measure. The notes came from a meeting held
when Kitzhaber and the opposing lawyers who challenged the measure met
to discuss the case. Though parties representing both sides of the challenge
were in the meeting, there seemed to be no disagreement about strategy,
choice of judge, or legal approaches to take. Further, the notes indicate
that the people’s strategy may have been outlined at the meeting
in a way that led to defeat. And it was laid out for the opposition to
see.

Observers
who supported the measure complained loudly that several obvious tactics
had been overlooked in the measure’s defense. But Measure Seven,
which protected the private property rights of Oregonians by establishing
a system of compensation, was overturned.

After his
defeat in court on this issue, Schuman was appointed to the Court of Appeals
by John Kitzhaber.

And now
David Schuman faces David Hunnicutt for the open seat on Oregon’s
Court of Appeals. Not surprisingly, attorney David Hunnicutt has worked
with the organization that brought Measure Seven to Oregon voters.

The original
ethics complaint about the (mis)handling of the Measure Seven defense
(see BrainstormNW, "Deep-Sixing Seven," by Bill Merritt, June
2001) was filed by Robert Swift, a Newberg lawyer with 40 years experience
and a registered Democrat. Though the complaint was decided in favor of
Kitzhaber and Bradbury’s attorney David Schuman, some of the language
of the complaint should have been a red flag alert to most citizens, and
one would think more so to any potential candidates. Language such as,
“The question is good government. You can’t bend the rules
to get the result you want.” And, “…fundamental processes
of our state government may have been subverted or corrupted. Even the
independence of the judiciary itself…may be threatened.”

Now, again,
the ethics complaint was dismissed. But a new campaign was already underway.
Schuman filed for the open seat on the Court of Appeals in July of 2001,
immediately after his appointment to fill the vacancy. Careful attention
to ethical details would seem to have been the order of the day.

The election
for the seat is in this May Primary Election. Let’s be clear about
that—the election for the seat is in this May Primary Election—because
apparently it wasn’t clear to Schuman.

He failed
to file a Voters Pamphlet Statement. And that would have made his chances
of winning poor-to-nonexistent.

Races for
judge are an enigma for most voters who usually know next to nothing about
the candidates. It is fair to say that most voters rely on the Voters
Pamphlet and that Schuman’s mistake would have cost him the seat
on the bench.

Oh well.
He could join the ranks of other almost-rans such as Linda Peters, whose
chances in the primary against David Wu were destroyed when she was misinformed
by her staff about the deadline. Fred Neal, who works in the Secretary
of State’s office remembers the missed deadline. “She burst
into tears when I called her,” says Neal.

Neal also
confirms that in this election cycle another candidate, Republican Billy
Dalto missed the deadline. Dalto says that he was directed to a different
line while another member of his campaign stood in the right line. But
the office closed before he made it back to rejoin her. Says Neal, “I
talked to him face to face five minutes after 5:00. He was late; he came
in after 5:00. He had somebody in line for him but…I told him I
could not receive it.”

Linda Peters
lost to David Wu. Dalto will not appear in the Voters Pamphlet. But perhaps
you’ve already seen David Schuman's statement, which will appear.
Why?

Schuman
claims that he was misled by Fred Neal, an official of the Elections Division,
into thinking that the election was in November. As he outlines events,
Schuman was uncertain about the timing of the election after talking with
another judge friend. So on returning from lunch with his friend, two
days before the deadline, they stopped in the Capitol and ran into Neal
and asked questions about the various scenarios of election of judges.
And in that discussion Shuman says he was misled. Shuman also claims to
have been misled again two days later in a phone conversation with an
anonymous employee of the Elections Division. An anonymous employee?

There are
different scenarios for filling seats, says Neal, depending on whether
the seat
is “to fill a vacancy” or is an “open” seat. Neal
also says that candidates are given a handout at his office titled, “Offices
Open, May 21 Primary Election.” This easily obtained handout clearly
lists Judge of the Court of Appeals Position 1—the seat for which
Schuman and Hunnicutt filed. Other positions “to fill a vacancy,”
are clearly marked with an asterisk. The requirements for these positions
are methodically explain-ed for candidates
in black and white. The entire document is also posted on the World Wide
Web.

Of course
you would have to go to the office, or look on the Web.

Shuman apparently
did neither.

In his sworn
affadavit, he also says, “At approximately 4:40 on that same afternoon
[March 12], I learned that an opponent had filed to run against me for
Position No.1 on the Court of Appeals.”

Wasn’t
that a clue to Schuman that an election was imminent?

It was left
to Neal to call Schuman personally on March 18, four days after the Pamphlet
deadline to tell him that, regretfully, his statement had not been, and
would not be, received.

When asked
about the history of the Voters Pamphlet Neal could only recall one exception
in 1946 when a candidate was allowed in the Pamphlet around the rules.

Schuman
would be the second. Based on his contention that he was misled by officials
of the Elections Division, Democrat Secretary of State Bill Bradbury issued
a declaratory ruling that he has the authority to accept the late statement,
and that given the circumstances, he would do so. And he did.

The hearings
officer for the ruling, by the way, was Paddy McGuire, former chairman
of the Democratic Party of Oregon.

Obvious
questions that come to mind, especially for a candidate for judge: Wasn’t
he, the candidate, responsible for determining the proper election laws
for his race? Wasn’t eight months enough time for him to figure
out when the election he filed for would be held? Since when is “ignorance
of the law” an acceptable excuse? Especially for a judge? He can't
figure out election law, and he wants to be a judge?

The ruling,
by the way, states that the same doctrine of law used to justify Schuman’s
favorable ruling has been applied “to situations in which the agency
misled a party as to the place of filing a document.” Hmm. Maybe
someone should point this out to Dalto, who claims to have been misled
in just this way, resulting in his five-minute miss on
the deadline.

Other critics
of Bradbury’s unprecedented ruling speculate how much easier it
will be, for example, for Oregon landowners to get relief if they can
file a lawsuit when they buy a piece of property based on inaccurate statements
from a county planner. Maybe we can even get out of traffic tickets by
claiming to be directed to the incorrect window to pay.

But of course
you’d have to have friends in high places willing to believe your
version of the facts.

In Schuman’s
case his sworn affadavit was accepted as the true version of the facts.

In an interview
with Fred Neal however, the elections official says their conversation,
referenced in the affadavit, was about scenarios for filling vacancies
and open seats. Neal states, “I didn't tell him that he would be
on the November ballot per se. I said, ‘If it were to fill a vacancy.’”
Further, Neal says that the conversation did not take place in his office,
in his official capacity. Rather, like Schuman and his friend, Neal says
he was coming back from lunch and a brief nap in his office. “I
was going from lunch to my station, the Voter’s Pamphlet Filing
Station, passing through the House Chambers. Mr. Schuman and Mr. Breithaupt
stopped and asked me some questions.”

Make a note
not to stop and chat with friends if you work in any government capacity.

But all
these missteps are now in the past. The statements are in the Voters Pamphlet
(except Dalto’s) and the election is upon us.

There is
no question that Schuman’s experience and credentials exceed those
of his opponent, Hunnicutt. He rightfully touts his experience teaching
law school and his years with the A.G.’s office. Schuman has earned
a reputation for his thorough knowledge of Oregon’s Constitution.
And he is supported by respected fellow attorneys like Dave Frohnmayer.

But as he
followed the predictable and often politically appointed, rather than
elected, path to judgeship, what has he gained from his experience? He
may know the Constitution, but how rigorously does he defend it? Just
the parts he agrees with, or the entire Constitution? Schuman defended
Oregon's assisted suicide law, but was not so successful with private
property rights. Will he defend that century-old, integral part of our
Constitution, Oregon’s initiative and referendum system? Or will
he advocate
his own social and political views from
the bench?

Schuman’s
own statements from the past about the initiative system, his participation
in the overturning of voter-approved Measure Seven, and the political
machinations surrounding his Voters Pamphlet debacle leave us with serious
doubts.

Oregonians
must see to it that our courts uphold the Constitution and provide equal
justice under the law. Schuman’s history of benefiting from political
patronage raise a red flag in this regard. Hunnicutt, his opponent, is
more straightforward in his approach and is clearly the better choice.

The words
of that first ethics complaint against Schuman are hard to forget, and
should serve as a warning—even if that complaint was dis-missed:
“The question is good government. You can't bend the rules to get
the result you want.”

Schuman
could have at least heeded the spirit of the warning. We think that the
voters should.